Chicago-Kent Law Review
Volume 79
Issue 2 Symposium: Law and Economics and Legal
Scholarship
Article 7
January 2004
Should Law Professors Teach Public Choice
Theory
Guido Pincione
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SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE
THEORY?
GUIDO PINCIONE*
INTRODUCTION
Public choice theory purports to explain and predict the behavior
of political agents (politicians, bureaucrats, voters, and rent seekers)
on the assumption that they are instrumentally rational. According to
this assumption, an agent will pursue his subjective ends by choosing
the course of action that, given his beliefs, is both conducive to that
end and personally cheapest. Agents may be mistaken in their beliefs
about means and costs, but this does not by itself detract from their
rationality. They choose the least costly means to their ends, given
their beliefs.
Economists extensively used the instrumental model of rationality to study the behavior of consumers, producers, and firms in various types of markets. Indeed, "rational choice theory" is a term
frequently used to denote the basic conceptual apparatus of econom-
ics. Public choice1 incorporates into economic models the behavior of
political agents, such as voters and politicians, whom traditional
economists treated exogenously. It does not ascribe to political agents
the same goals that traditional economists ascribed to economic
agents, although both public choice and traditional economists adopt
the postulate of utility maximization as an analytical tool that allows
them to study the formal properties of instrumental rationality, such
* Professor of Law at Universidad Torcuato Di Tella, Buenos Aires, and 2003-2004
Fellow of the Center for Ethics and Public Affairs, Murphy Institute, Tulane University; author
of articles on moral and political philosophy published in The Journal of Philosophy, Harvard
Journalof Law and Public Policy, and other scholarly journals; currently finishing a book, with
Fernando R. Tes6n, on political deliberation, democracy, and consent. I am grateful to Eduardo
Baistrocchi, Marcelo Ferrante, and an audience at the Special Workshop on Law and Economics and Legal Scholarship, 21st IVR World Congress, Lund, Sweden (August 12-18, 2003), for
useful comments on an earlier draft. My thanks also to Torcuato Di Tella University Law
School and the Center for Ethics and Public Affairs at The Murphy Institute, Tulane University,
for affording me exciting intellectual environments during my work on this Article.
1. For convenience, I will sometimes use the term "public choice" to refer to public choice
theory.
CHICAGO-KENT LAW REVIEW
[Vol 79:451
as the scope of transitivity of preferences in individual and collective
behavior. When their purpose is not formal analysis but rather the
derivation of predictions, public choice theorists usually substitute
maximization of votes, of political power, of bureaucratic appropriations, and other "non-economic" goals for maximization of monetary
income-the goal postulated in many predictive applications of tradi2
tional economics.
This Article rejects various philosophically interesting objections
to the use of public choice theory in legal education. In Part I, I reject
the view that the descriptive ambitions of public choice do not fit the
interpretive skills that law schools are expected to foster. In Part II, I
reject the view that public choice carries a harmful moral message.
Part III replies to objections to the focus on efficiency that underlies
most public choice scholarship. Part IV replies to the objection that
legal education should be about case-by-case balancing, and as such
makes no room for public choice theorizing. Part V counters some
epistemic objections to teaching public choice at law schools. Part VI
offers concluding remarks.
I.
INSTRUMENTAL RATIONALITY AND RULE FOLLOWING
It is natural for professors of economics to teach public choice.
After all, public choice generates explanations and predictions about
political markets. The new perspectives introduced by public choice
in areas conventionally classified as "economic" certainly earn public
choice a place in an economics curriculum. The innovations range
from explanations of special-interest legislation (i.e., legislation that
benefits concentrated interests at the expense of the overall public
welfare) in terms of collusions between regulatory agencies and regulated industries to predictions of increased public expenditure as a
result of logrolling (i.e., vote trading by legislators). But what if our
concern is not to explain or predict (for short, describe) behavior but
rather to interpretrules? Judges and lawyers are supposed to interpret
legal rules, and law professors are expected to develop prospective
judges' and lawyers' interpretive skills. It might seem, then, that law
schools make no room for the descriptive aims of public choice theory. This view draws a stark distinction between, on the one hand,
2. For a recent, non-technical introduction to public choice theory, see ROBERT D.
COOTER, THE STRATEGIC CONSTITUTION (2000). For a defense of the view that rulers seek
glory rather than revenue-maximization, see Manfredi M. A. La Manna & Gabriella Slomp,
Leviathan: Revenue-Maximizer or Glory Seeker?, 5 CONST. POL. ECON. 159 (1994).
2004]
SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
453
describing the behavior of political actors as a function of the constitutional rules under which they act, and, on the other, interpreting
those constitutional rules. While explanations and predictions have to
do with causes and effects, interpretation has to do with the irreducible notions of meaning and rule following. Or so many writers have
3
thought.
There is an obvious sense in which differences between description and interpretation are no good grounds for excluding public
choice from legal education. We expect law schools to provide legislative as well as interpretive skills. Just as a lawyer trained in the economic analysis of intellectual property law is better equipped to
advise legislators on the likely distributional and efficiency effects of a
bill introducing new registration requirements for trademarks, a lawyer trained in public choice is better equipped to advise the drafters
of a constitutional reform. In both cases, legislators will take advantage of the causal frameworks studied by economics theories of law.
But what about the interpretive skills themselves? Does public choice
make room for them? The instrumental model of rationality presupposed by public choice views agents as making separate cost-efficient
choices, given their beliefs. Such opportunism seems to exclude rule
following. The suggested conclusion is that in a world of opportunistic
agents, no question of interpreting rules could possibly arise.
But this is a mistake. Instrumental rationality makes room for
the sort of rule following that lawyers and judges must presuppose
when they interpret legal rules. Sometimes it is best for me to commit
myself to following a certain rule even in those occasions where I believe that my goals will be best achieved by transgressing the rule.
This is the case when I predict that such a belief will be unreliableperhaps I will be too distraught, or too hurried, to adequately pick out
the least costly means to achieve my goals. Most importantly, it may
be best for me to commit myself to genuinely following a rule, as opposed to using it as a rule of thumb, i.e. as a practical recipe, a stressor time-saving device to advance my ends. I can ignore a rule of
thumb when I feel confident enough that its normal conditions of
application are absent, but compliance with a genuine rule admits of
no exception. Instrumental rationality may have led me to adopt that
rule as a fundamental premise of my practical reasoning within a cer3. This description/interpretation dichotomy is usually associated with the rational
choice/sociological paradigms in the dispute about the methodology of the social sciences. For a
useful survey, see VIKTOR J. VANBERG, RULES AND CHOICE IN ECONOMICS 11-24 (1994).
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tain range of situations: my current anticipation of epistemic and mo4
tivational weaknesses may have led me to become so committed.
Another way in which the assumption of instrumental rationality
can account for genuine rule following is this: Game-theoretic analyses of trust explain why people who have developed a disposition to
5
fulfill their promises as a matter of duty do better in market societies.
It may be psychologically impossible for people to appear to be trustworthy (and thus reap the social benefits this yields) unless they are
rule followers. Strategic "rule following" may be less profitable than
genuine rule following. This may be due to our limited ability to simulate commitment to rules. 6 Does this picture involve a tension between the assumption of opportunism (which takes agents to be
exclusively responsive to current estimates of future streams of personal costs and benefits) and rule following (which is sensitive to past
commitments to rules)? No. At a fundamental level, instrumental
rationality alone is performing the explanatory task. The explanation
of A's doing x proceeds here by assuming that A has now a goal, G,
set for her by a rule that it was instrumentally rational at an earlier
time for her to adopt, given her goals G' at that time. The explanation
also assumes that A regards x as a cost-efficient means of furthering
G. For example, someone committed to a rule that forbids him from
intentionally killing the innocent usually furthers the goal that this
rule set for him (i.e., his refraining from intentionally killing the innocent) quite easily, namely, by so refraining. He might have endorsed
such a rule as a (cost-efficient) way of securing for himself an afterlife
in Heaven, given his beliefs that following God's commands is conducive to such a life and that God forbids persons from intentionally
killing the innocent. Or he might have endorsed such a rule as a (costefficient) way of becoming a good person, given his beliefs (religious
or otherwise) at that earlier time. In both cases, this agent was instrumentally rational throughout.
There is, then, nothing in public choice analysis that excludes
genuine rule following. Whether an agent follows a rule, and which
4. See ROBERT NOZICK, THE NATURE OF RATIONALITY 3-40 (1993); see also VANBERG,
supra note 3, at 25-40, 60-76.
5. Game theory is the formal analysis of interactions where the agents' gains and losses
partly depend on what others do, on the assumption that everyone is instrumentally rational.
For a non-technical and philosophically interesting introduction, see FREDERIC SCHICK,
MAKING CHOICES: A RECASTING OF DECISION THEORY 82-105 (1997). For a non-technical
discussion of evolutionary game-theoretical explanations of rule following, see VANBERG, supra
note 3, at 30-38.
6. See VANBERG, supra note 3, at 60-76.
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SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
455
one, are empirical matters that must be ascertained in each context.
The crucial point is that saying that someone is following a rule is
perfectly compatible with appealing to instrumental rationality at the
most fundamental explanatory level. The upshot is that there is no
obstacle to viewing legal rules as sources of non-opportunistic reasons
for (ultimately) instrumentally rational agents. But then, the worries
about public choice thwarting the development of the interpretive
skills praised by law schools are unwarranted. A public choice explanation of the emergence of clusters whose members share the interpretive attitude need not be inconsistent or otherwise mysterious. To
put it differently, the suggestion is that the essence of law teachinginterpreting legal rules and balancing the considerations that bear on
the solutions to particular cases-need not be erased by public choice
teaching. Rather, it may be explained by it. Indeed, as we shall see in
Part IV, public choice may help us discriminate between opportunistic and principled behavior, thereby enabling us to identify those discursive practices that are genuinely legal.
II. THE MORAL-MESSAGE OBJECTION
Public choice is frequently associated with cynicism. It usually
portrays politicians as bent on maximizing votes, bureaucrats as bent
on maximizing appropriations, and so on, rather than ascribing them
the public-spirited goals mentioned in their job descriptions. Many
people expect lawyers, and especially judges and legislators, to be
public-spirited. It may seem natural, then, to worry about the detrimental impact of public choice teaching on the public spiritedness of
prospective lawyers, judges, and legislators. As a preliminary step to
dispelling this worry, it is useful to recall a classical illustration of the
role of morality in taking us away from collective tragedies. Game
theorists call a "prisoner's dilemma" a strategic situation where universal cooperation in a collective endeavor yields higher individual
payoffs than universal defection, but the individual payoff from defection is higher than the individual payoff from cooperation, irrespective of how the others behave. Defecting is therefore instrumentally
rational. Now experimental prisoner's dilemmas show that students of
economics tend to behave less cooperatively than students of other
disciplines do.7 Should we abstain from teaching economics, then?
7. See Robert H. Frank et al., Does Studying Economics Inhibit Cooperation?,7 J. ECON.
PERSP. 159 (1993).
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Well, this seems to be an overreaction; economists may well be
on balance beneficial, even if a world devoid of economists were
more cooperative (including cooperation in the achievement of evil
goals). Still, it may seem that the above empirical results make the
case against using public choice theory in legal education particularly
strong. Law schools train future lawyers, judges, and legislators, i.e.
persons who play a leading role in politics and law. There may be
legitimate concerns, then, about public choice fostering objectionable
behavioral traits precisely in areas in which morally correct behavior
can make a huge difference in society as a whole. There is no obvious
objection to instilling students of economics the narrowly selfinterested rationality that economists ascribe to producers, consumers, and firms, especially if those students plan to serve in the private
sector. But things seem to be different when it comes to teaching public choice to law students. Imagine that, like their economics counterparts, law students exposed to public choice internalize the behavioral
patterns that public choice ascribes to political actors. We can easily
see why this might be socially harmful. For example, judges who were
taught public choice theories of adjudication would be consciously
displaying opportunistic behavior aimed at a successful career or
fame. Their ostensible appeal to principles would be instrumental to
such aims. To the extent that the political process through which
judges are selected is plagued with the pathologies described in the
public choice literature, it may seem natural to attribute such lessthan-lofty goals to judges.8 Again, legislators trained in public choice
would try to maximize votes, power, glory, or whatever the public
choice model they were exposed to postulates. Since judges and legislators can have significant social impact, it seems that law schools
should instill public-spirited aims, rather than enhance, or reinforce,
narrow self-interest in those ways.
But this story is empirically dubious. Students of economics learn
that rationalagents involved in a prisoner's dilemma will defect. So
perhaps the above evidence should not be taken to show that students
of economics become more narrowly self-interested, but rather that
they become more sensitive to the demands of rationality. Indeed,
rational choice analysis helps us understand why rational agents will
sometimes fail to efficiently channel their altruistic impulses. To see
this, consider that some forms of charity are what economists call
8. Cynical accounts of judicial activity do not strictly follow, however, from the assumption of instrumental rationality. See Part IV.
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SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
457
"public goods." Each individual can consume a public good as much
as she wishes without detracting others from limitless levels of consumption. Moreover, anyone can consume a public good for free,
including those who have not incurred costs in producing the good. A
lighthouse is a classical example of a public good. Navigators cannot
(or rather could not, when technologies for excluding free riders were
unavailable) be charged for the service provided by a lighthouse, and,
for all practical purposes, they can use this service in unlimited
amounts. Although all the navigators in a certain area would be better off with a lighthouse than without it, even if each did his share in
paying for it, none of them finds it personally profitable to contribute.
Each navigator realizes that whatever the others do, he will be better
off if he refrains from doing his share, since nobody will be able to
prevent him from free riding in the efforts of others to build and
maintain the lighthouse. Since every navigator is subject to the same
incentive structure, underproduction of lighthouses is the predictable
outcome. The production of public goods is subject to a generalized
prisoner's dilemma: each potential consumer ends up worse off vis-Avis a situation in which greater amounts of public goods are produced
at every consumer's expense.
Crucially for present purposes, in a society of altruists certain
forms of charity are public goods. Suppose that medical care can be
most efficiently provided through indivisible and costly technological
devices. Suppose, in addition, that a great number of individual contributors is needed to purchase one such device. Each potential contributor faces, then, a cost threshold: above the threshold, her
contribution to the purchase of the device would be superfluous, and
below the threshold it would be insufficient. Therefore, the vast majority of the potential contributions will be superfluous or insufficient;
by construction, the likelihood that any given contribution is the one
needed to reach the threshold is negligible. As a result, individuals,
being altruistic, will choose to contribute to other charitable endeavors in which they can definitely make a difference. Thus, they may
donate cotton and bed clothes to hospitals. By hypothesis, such contributions will not improve medical care as much as the above devices
would. A sub-optimal level of medical care is, then, the predictable
outcome. Like other public goods, some forms of charity fall prey to
free riding. 9
9. See, e.g., ALLEN BUCHANAN, ETHICS, EFFICIENCY, AND THE MARKET 71-73 (1985).
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The upshot is that there is nothing in a society of altruists that
makes it impervious to rational choice analysis. But then, the above
evidence about students of economics defecting in prisoner's dilemmas need not show that they are more selfish than the rest of us.
Rather, it may indicate that they better understand what rationality
requires in a prisoner's dilemma. They will defect more than the rest
of us will, but sometimes they may well do so out of altruism. Whatever their goals, students of economics may have internalized the
instrumental model of rationality. Such goals may differ from the
goals ascribed to political agents by public choice theorists. Why,
then, should we expect students of public choice to internalize the
goals ascribed to political agents, rather than develop keen antipathy
to them? Indeed, familiarity with public choice theory would help
public-spirited constitutional drafters and legislators. As I shall argue
in Part V, they would thereby find themselves better equipped to design institutions, policies, and laws aimed at facilitating the appointment or election of the virtuous to public office, or at least at
preventing the wicked from doing as much evil as they could.
III. THE NORMATIVE OBJECTION
Public choice scholarship has paid much attention to the impact
of various constitutional rules on efficiency. This may induce supporters of usual standards of legitimacy or justice, such as equality, not to
teach public choice. They might think that public choice should not be
taught just in case the moral criteria underlying its selection of problems are not acceptable. Notice that this is a general objection to
teaching public choice-it need not be confined to law schools.
I have three replies. First, it is misleading to contrast efficiency
with principles of political morality, such as liberty, equality, or rights.
Presumably, egalitarians want efficient moves towards equality, that
is, moves that bring about a more equal distribution in the least costly
way. Moreover, it is hard to see how egalitarians could deny that individuals are entitled to voluntarily exchange whatever rights an egalitarian regime conferred to them. They are arguably entitled to do so
as long as they do not thereby affect the rights of others. (If every
conceivable exchange of egalitarian rights fails to meet this condition,
then it is hard to see what choices or interests those rights are sup-
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SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
459
posed to protect, or even what "right" means in this context).1 Banning voluntary exchanges would be tantamount to blocking moves
that, on the usual Paretian definition, are efficient. And such a ban
would be intuitively wrong: allowing people to improve their situations at no one's expense is arguably a necessary condition for the
legitimacy of a social order. Traditional theories of distributive justice, egalitarian or otherwise, are best conceived as laying down additional (necessary or sufficient) conditions.
Second, the objection assumes that we have a moral duty not to
teach wrong principles. But this need not be so. Consider classical
utilitarianism, the ethical theory that enjoins us to maximize the net
amount of happiness in the world. Suppose that utilitarianism is the
true or valid moral theory. Does it follow from this alone that we
ought to teach utilitarianism? Clearly not. Such a prescription would
follow only in a world in which teaching utilitarianism maximizes net
happiness. Some philosophers, including some utilitarian ones, argued
that ours is not such a world. Owing to epistemic or motivational
shortcomings, agents who heed to utilitarian considerations in their
decision-making processes may fail to maximize net happiness. If so,
utilitarianism may oblige us to make agents adopt some form of nonutilitarian ethic, say, the Golden Rule. We would be so obliged if, by
deliberately following the Golden Rule, agents were in effect maximizing overall net happiness. To put it differently, the hope here is
that, by adopting the Golden Rule as a decision procedure, the
agent's behavior will conform to a utilitarian standard of rightness. 11
A valid moral theory may consistently mandate us to teach a theory
that is incompatible with it. But then, we may have a moral duty, all
things considered, to teach public choice theory, no matter how morally objectionable its moral message is.
Third, public choice theory yields predictions about the distributional profiles that would obtain in various institutional settings. Independent theories of justice may disallow such distributions, in
which case public choice theory enables us to identify the institutional
10. See Guido Pincione, Market Rights and the Rule of Law: A Casefor ProceduralConstitutionalism, 26 HARV. J.L. & PUB. POL'Y 397, 423-25 (2003).
11. See the classical discussion of the utilitarian duty to teach utilitarianism in HENRY
THE METHODS OF ETHICS 475-95 (Hackett Publishing 1981) (7th ed. 1907). Representative contemporary discussions are R.M. HARE, MORAL THINKING: ITS LEVELS, METHOD,
AND POINT 25-64 (1981); DEREK PARFIT, REASONS AND PERSONS 3-116 (1984); and J.J.C.
Smart, An Outline of a System of Utilitarian Ethics, in UTILITARIANISM: FOR AND AGAINST
(J.J.C. Smart & Bernard Williams, 1973).
SIDGWICK,
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changes capable of altering such distributions in the right direction.
Public choice theory is neutral with respect to theories of distributive
justice. It is instrumental to distributive justice, without taking sides
on conceptions of distributive justice. We can illustrate this by considering again egalitarianism, to mention a social goal that opponents
to public choice frequently invoke. One common proposition in public choice scholarship is that, under majority rule, governments will
tend to disperse costs and concentrate benefits." Members of groups
whose individual organizational costs are low and who stand to gain
much individually from a public policy have an incentive to invest
(through campaign funding, publicity, lobbying, and other means) in
the enactment of such a policy. For example, subsidized industries
have an incentive to lobby for the maintenance of the subsidies,
whereas consumers and taxpayers, who stand to lose as a result of
higher taxes and prices, face high organizational costs to oppose the
subsidies. They will then not feel inclined to lobby for their abolition.
Arguably, this asymmetry between concentrated benefits and dispersed costs fuels itself; the wealthier one is, the more one can invest
in favorable legislation. The upshot is that majority rule over distributive issues buttresses existing inequalities. This shows that public
choice analysis should interest egalitarians who seek advice on institutional reform.
IV. THE PSYCHOLOGICAL OBJECTION
Anthony T. Kronman argues that law professors cannot teach
anything different than what they believe is true. 3 Kronman points
out that law professors have been jettisoning the "prudential" disposition towards law, a, disposition to balance the mutually incommensurable considerations that bear on a legal case, as something different
from deriving a solution from a monistic, universalistic value theory.
Kronman's defense of the prudentialist approach need not concern us
here. For present purposes it is instructive to discuss his view that the
economic analysis of law, also called "law and economics," makes no
room for the prudentialist approach. Both law and economics and
public choice theory view legal rules as implicit prices. For example,
law and economics views the criminal law as a means to raise the op12. The first systematic defense of this proposition appears in MANCUR OLSON, THE
LOGIC OF COLLEcTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1971).
13. See ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL
PROFESSION 238-40 (1993).
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SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
461
portunity cost of committing a crime. To the extent that public choice
theory views constitutional rules as incentive structures under which
political agents behave, it can be seen as part and parcel of law and
economics. 14 Kronman imagines someone advocating the prudentialist
approach by appeal to the normative aims of law and economics (i.e.,
wealth maximization). This person might argue that prudentialist
professors would further those normative aims to a higher degree
than professors who teach law and economics. Kronman counters,
however, that "[a]ny attempt to justify prudence from the very different standpoint of economics creates two special difficulties."1" The
first difficulty is the psychological barrier to teach something that one
believes is nonscientific. Kronman says that professors persuaded by
law and economics will end up teaching what they believe to be the
truth about law. They will set aside the prudentialist attitude, "for
they know that this attitude misrepresents the truth about morality
(conceiving it to be less unitary and exact than it actually iS)." ' 16 A
parallel argument can be constructed by substituting "public choice
theory" for "law and economics."
The second, and related, difficulty that Kronman observes in the
project of justifying prudence on law and economics grounds is the
invasive tendency of law and economics: it narrows more and more
the areas of law where the prudentialist attitude seems appropriate.17
"Posner's suggestion that prudence has a place in law and legal education conceals the tension between the economic point of view from
which this claim must be defended, on the one hand, and the deliberative habits that it authorizes, on the other.""s
Some claims that I made in the previous Part seem to support
Kronman's views. We saw that there is no inconsistency between "P
is a true or valid moral principle" and "P (in conjunction with factual
statements) forbids us to teach P." Whether law professors must
teach things that they believe to be false or invalid depends, inter alia,
on whether they are psychologically capable of detaching their teach14. Law and economics and public choice differ sharply as regards the connections between law and efficiency. While law and economics scholars tend to regard the legal system as
efficient, public choice scholars tend to stress the role of constitutional rules in bringing about
government failure, i.e. inefficient policies. See Saul Levmore, Property's Uneasy Path and Expanding Future, 70 U. CHI. L. REV. 181 (2003).
15. KRONMAN, supra note 13, at 239.
16. Id.
17. Id. at 239-40.
18. Id. at 240. Richard Posner is one of the most prominent figures in the law and economics movement.
CHICAGO-KENT LAW REVIEW
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ing from their beliefs. If Kronman is right in that law professors cannot help but teach what they believe to be true, then it is utopian to
tell professors persuaded by law and economics to teach in the prudential fashion that Kronman favors. The suggested conclusion would
be that the economic lawyer could not meaningfully say that law professors should adopt prudentialist teaching methods.
But I cannot accept this line of reasoning. To begin with, I am
not sure what to make of the second "difficulty" that Kronman points
out. Is his reference to the "tension" between the economic approach
and prudentialism intended to say that the project of providing an
economic rationale for prudentialism is inconsistent or in any other
way unsatisfactory? One would expect that as the law and economics
apparatus gets more refined and thus harder to understand, lawyers
and judges have a stronger reason to resort to the prudentialist approach, if, as law and economics claims, this supplies the appropriate
shortcuts. It is the economics of knowledge that tells lawyers and
judges to take such shortcuts, and presumably law professors will be
well advised to use them as well. Moreover, using such shortcuts
would be in the spirit of law and economics scholars' belief that traditional legal reasoning (unconsciously) promotes efficiency. This argument for prudential reasoning is structurally similar to the
utilitarian defense of non-utilitarian decision procedures that I exposed in Part III.
Kronman's first "difficulty" is the psychological barrier to using
such shortcuts. Even if the barrier were real, however, law schools
could make room for both public choice and prudentialism in an obvious way: professors who teach public choice need not be the same
as those who adopt the prudentialist approach. What about law students, then? Could they not be psychologically prevented from taking
at face value prudentialist courses had they been exposed to public
choice courses, and vice versa? Legal reasoning may be ultimate, in
the sense that lawyers and judges regard prudential considerations as
the final arbiters of legal soundness. On this view, prudential considerations, however difficult to reconstruct (perhaps an impossible endeavor, if Kronman is correct about the irreducible value pluralism of
prudential reasoning), arbitrate among a variety of values and principles, including the wealth-maximizing paradigm that informs much
public choice literature. It follows that adoption of the prudentialist
view eo ipso expels (normative) public choice theory as the final arbiter in legal interpretation. So, while making public choice and pruden-
2004]
SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
463
tialist professors teach separate courses may well overcome the alleged psychological barrier to teaching what one believes to be false,
it may create a similar barrier in the students. They would be asked to
display a schizophrenic attitude towards law-the same kind of
schizophrenia that the separation of teaching duties was supposed to
spare the law professor.
To assess this view, it is important to see its likely motivation.
From the public choice perspective, political and legal discourse is at
odds with prudential reasoning, as Kronman understands it, or, for
that matter, with any sort of genuinely normative reasoning, as distinct from bargaining. Public choice has an unmasking ambition. It
does not take at face value what politicians and legislators say. It
views political argument as bargaining, or sheer posturing aimed at
earning votes, or rent-seeking rhetoric of special interests, and so
forth. Consistency requires the public choice theorist to extend the
unmasking to the discourse of judges and lawyers. Thus, public choice
scholars tend to view lawyers as experts in the manipulation of the
legal system to the benefit of those who stand to gain or lose from
special interest legislation. In support of this view, public choice theorists sometimes note that the number and earnings of lawyers vary
directly with the redistributive powers of the state.' 9 Likewise, consistency requires public choice scholars to treat the discursive behavior
of the judiciary endogenously, i.e., as a dependent variable in a comprehensive rational actor model-after all, judges are selected
through the very political process studied by public choice theory.20
Public choice cynicism cannot possibly regard participants in legal
discourse as arguing in any recognizable sense; bargaining is the very
essence of the law. It seems, then, that public choice makes no room
for prudentialism. Prudentialism is about sound legal arguments. The
pedagogical message seems straightforward: neither the teacher nor
the student can (sincerely) embrace both public choice and prudentialism. They must pick out one approach to the detriment of the
other.
Yet this view fails to recognize all the relevant implications of the
instrumental rationality postulate on which public choice theory rests.
19. See RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD 1-20 (1995).
20. It is odd, then, that public choice models of legislation seldom view the judiciary as
governed by the behavioral postulates that allegedly govern the behavior of legislators and
other political actors. For a brief survey, see Edward L. Rubin, Public Choice and Legal Scholarship, 46 J. LEGAL EDUC. 490, 499 (1996).
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There is no obstacle to public choice explaining both the occurrence
of genuine argument in some settings and the occurrence of bargaining in others. It need not rest on bold assumptions to do that. It suffices that a relatively tiny minority of people just happens to be
committed to genuine argument. Those people have an incentive to
get together with like-minded people and to restrict entry to fake
arguers (and, for that matter, to bullies and other kinds of nonarguers). Moreover, they have an incentive to get together with good
arguers and to set up selection processes ensuring high-quality argumentation. In the course of time, self-selective and selective pressures
may give rise to universities, research institutes, and other argumentsensitive institutions. Conceivably, the judicial branch may be one of
those institutions. We may complicate this picture by placing the judiciary within a larger game in which law schools make prospective
judges internalize the value of intellectual honesty. Law schools will
then help enhance, through journal articles and other forms of public
criticism, the quality of judicial argument.
Crucially, this is an uncompromising public choice picture. It informs us about the ratio of arguers to fake arguers (i.e., bargainers
and posturers of various sorts) that a certain group will display. If
instrumentally rational,individuals will join groups composed of likeminded people, or select them as members. Instrumental rationality
alone, fleshed out by an appropriate (independently testable) ascription to the relevant agents of goals and beliefs about how to achieve
them, does the job. Given information about a group's initial membership and institutional structure, a model of this sort may yield predictions about the types of individuals who will join the group, or be
accepted by it. Some groups will attract good arguers and reject bad
(or non-) arguers. Other groups will put a premium on rhetorical or
bargaining abilities. Such models may help us identify, given information about initial membership and internal rules, equilibrium shares
of arguers and fake arguers once the selective and self-selective pressures generated by those rules operated for a sufficiently long time.
For example, we may be able to infer the intellectual behavior prevailing at a university department: given appointment procedures and
past membership, the selective and self-selective mechanisms postulated by the model will enable us to derive propositions about current
membership. Public choice tells us, in short, what kind of people a
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given institution will have selected for, given previous membership.2
It follows that public choice theory, and more generally rational
choice theory, makes room for genuine argument. Its models enable
us to infer how represented a deliberative disposition is in a certain
group.
Teaching public choice can therefore sharpen students' awareness of the proper province of genuine legal argument. It may help
them develop a sense of when, say, a Supreme Court ruling was motivated by a Dworkinian interpretation of the Constitution (i.e., one
that sees the Constitution in light of the best moral theory22), rather
than to political bargaining that led to the appointment of the justices.
To cite an extreme example, most of us would sneer at attributing
argument-sensitive aims to the judges who convicted Joseph Stalin's
political enemies during the 1936-1938 Great Purge in the Soviet Union. We would rather adopt a cynical stance towards such trials. But
things may be not so clear. If so, public choice may help us identify
23
the venues where genuine legal argument is likely to obtain.
V.
THE EPISTEMIC OBJECTION
When we say that a historian of science is teaching Aristotelian
physics, we mean that he is detachedly expounding Aristotle's physics. We do not mean to say that that he endorses Aristotle's physics.
By contrast, when we say that somebody teaches physics simpliciter,
we imply that she regards current physics as reliable. While the professor of history of science teaches in the sense of reporting others'
beliefs, the professor of physics conveys her beliefs about what the
most reliable physical theories are. It might be thought that professors ought to teach (what they believe is) the truth in non-moral matters. This view is consistent with the claim, defended in Part III, that
21. Postulating such equilibria need not be ad hoc: it may explain the resilience to changeof
vastly different behavioral patterns displayed by different groups despite the fact that they are
governed by similar institutions. Developments around the idea of multiple equilibria(classically
illustrated by the convergence on driving either on the left side or on the right side of the road,
in the absence of formal traffic rules) help us to understand why the same institutions yield so
different and stable behavioral patterns. For discussion of the role of multiple equilibria in the
explanation of widely different crime rates among institutionally similar societies, see Robert D.
Cooter, The Rule of State Law Versus the Rule-of-Law State: Economic Analysis of the Legal
Foundationsof Development, in THE LAW AND ECONOMICS OF DEVELOPMENT 101 (Edgardo
Buscaglia et al. eds., 1997).
22. See RONALD DWORKIN, LAW'S EMPIRE 151-275 (1986).
23. I think, then, that Rubin's suggestion that public choice has trouble at viewing judicial
activity cynically needs some nuances. See, e.g., Rubin, supra note 20, at 499-500.
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they may be morally required to teach false (or invalid) moral principles. They are allowed to expound non-moral theories they reject, but
not to teach them. This view may indeed regard the history of science
as a valuable teaching subject, although it generally involves exposition of false theories. But whether we should teach non-historical
subjects, such as (descriptive) public choice theory, depends, in this
view, on the epistemic credentials of the respective theories.
It may seem natural to think that this view urges us not to teach
theories whose predictions fail-is predictive failure not the mark of a
false theory? But this is a mistake. False predictions may help us spot
hidden factors. The discovery of Neptune is a well-known illustration
of this point. By the mid-nineteenth century, astronomers had noticed
that the orbit of Uranus was anomalous in terms of predictions derived from classical mechanics and background knowledge. However,
the anomaly prompted the discovery of Neptune in 1846. Astronomical observations were guided towards Neptune by classical mechanics:
it told astronomers where exactly a so-far unseen planet would have
to be located to make Uranus display its observed orbit. In this way,
wrong predictions of Uranus's orbit, based on classical mechanics and
background knowledge, led to a spectacular confirmation of classical
mechanics-the discovery of Neptune. Astronomers used classical
mechanics to predict the position of a hidden planet. The epistemic
objection to teaching public choice theory is not entitled, then, to rest
content with whatever predictive failures public choice theory leads
to. It must show (i) that public choice theory is unable to point to
independently testable hidden factors, or (ii) that such independent
tests disconfirm the theory, or (iii) that the predictive power of alternative theories is higher.
To be sure, we should distinguish between an interesting ad hoc
hypothesis, such as the one that led to the discovery of Neptune, and
hypotheses merely geared to immunizing a theory from predictive
failure. It is tempting to explain predictive failure in terms of hidden
factors whose presence cannot, for all practical purposes, be independently ascertained. But such moves do not increase our predictive
capabilities. They may be psychologically satisfying: our theory seems
to explain everything. The illusion vanishes as soon as we realize that
24
any theory can be immunized in this way, so why prefer ours?
24. See Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE 91, 96, 108-11, 125, 143 (Imre
Lakatos & Alan Musgrave eds., 1974). Hans Albert argues that rational acceptance of theories
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SHOULD LAW PROFESSORS TEACH PUBLIC CHOICE THEORY?
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Some writers have charged that public choice theory is especially
apt to such immunizing maneuvers.2 5 We saw that public choice assumes instrumental rationality: it tells us that agents will try to
achieve their goals through those means that they regard as personally cost-efficient. It might be thought that there is a risk of circularity
here. Can we not always tinker with our ascriptions of goals, or beliefs, so that we can always explain someone's actions? But there are
limits to such tinkering. We may have independent evidence of the
agent's goals. We may know, for example, the rate at which she
traded off making money with various other goals in the past. Such
evidence may enable us to ascribe goals (including, as we saw, moral
commitments) to her. By the same token, we may have independently
testable evidence about the agent's beliefs about means and costs. It
is on the basis of both kinds of evidence that we can formulate testable predictions about human behavior. Sometimes such evidence is
evolutionary in the way suggested in Part IV: we infer an agent's
goals and beliefs from the fact that he belongs to a group that selects
for such goals or beliefs. Competitive settings, such as markets and
electoral politics, lend themselves to evolutionary explanations, that
is, explanations based on processes that select for certain strategies.
In such cases, we infer people's goals or beliefs from the roles they
occupy at various stages of those processes. We can then test such
inferences by seeing whether the institutional structure and previous
memberships fit the process hypothesized in our evolutionary model.
Thus, it seems reasonable to assume that politicians, especially if they
are relatively successful, will be strongly sensitive to the electoral impact of their behavior. We may then predict that they will publicly
favor certain types of policies, given their institutional constraints:
which specific policies they will publicly favor will depend, for example, on the electoral system and the positions open to competition
(local government, presidency, Senate seats, etc.).
But even if most public choice predictions failed, and they could
6
not be saved by successful ad hoc hypotheses about hidden factors, it
would not follow that public choice theory is useless in institutional
design-surely, a legitimate topic in a law curriculum. As a branch of
is incompatible with immunizing strategies. See HANS ALBERT, TREATISE ON CRITICAL
REASON (Mary Varney Rorty trans., 1985).
25. See DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE
THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE 34-38 (1994).
26. Green and Shapiro endorse such skepticism. See id. at 34-42.
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economics, public choice theory is a deductive system: its predictions
follow deductively from rational choice assumptions together with
propositions about the goals and beliefs of the relevant agents. A
public choice model depicts a possible world in which actors could not
help behaving as they do, given the goals and beliefs the model ascribes to them. The independent variable is the institutional framework: political agents are assumed to react to the incentives created
by that framework. Were that possible world different from ours in
ways that affect the relevant predictions, then the theory would fail as
a predictive tool for our world. Assume that no deductive mistake
was made, that agents have the hypothesized beliefs, and that the
description of the setting in which agents behave (including the institutional framework) is accurate. Only the falsehood of the behavioral
postulate can then be responsible for predictive failure: the goals of
the political actors must differ from those ascribed to them by the
model. If, for instance, the model assumed universal egoism, we
would have a reason to suspect that some of the relevant actors are
public spirited instead, and to subject this conjecture to independent
tests.
But those predictive failures would be hardly a reason to believe
that the theory yields no useful policy recommendations. Some day
evil people may take advantage of the institutional framework to
bring about the gloomy outcomes that would obtain in the cynical
public-choice world-outcomes that, in the above example, we were
so far fortunate to avoid thanks to the public spiritedness of the political actors. We would be well advised to foreclose that possibility,
and this we will do better if we rely on a theory that tells us where
that possibility remains open in our world. In its most cynical versions, public choice theory is about the potential for evil of an institutional framework. Even if there were a country where, say, the public
choice predictions that regulatory agencies will be captured by special
interests fail, it makes sense to revise that country's institutional
framework in order to foreclose such a capture. It may make sense,
for example, to revise that country's constitution so as to strengthen
fiscal federalism, in the hope that it will then be more difficult for the
states to externalize the cost of special-interest state legislation onto
the federal budget. 7 We should achieve valuable social outcomes by
relying as little as possible on virtue. Even if political actors are more
27.
See DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRAcY 77-85 (1996).
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virtuous than suggested by usual public choice models, we should
economize on virtue.28 Public choice theory is the most systematic
attempt to tell us how.
VI. CONCLUDING REMARKS
I have argued that instrumental rationality makes room for the
kind of rule following presupposed by lawyers and judges, that teaching public choice need not instill opportunistic attitudes, that public
choice helps us efficiently achieve our preferred conception of a just
or legitimate social order, that it allows us to characterize a genuinely
legal culture (as opposed to a sheer balance of political power), and
that it need not be predictively accurate in order to help us see how
much virtue our institutions waste. Taken together, these claims make
it highly advisable, I think, for us to teach public choice at law
schools.
The objections that I addressed in this paper rest on various misinterpretations about public choice. Let me conclude with some brief
remarks about what I think is the most fundamental and pervasive
misinterpretation: that public choice is committed to universal and
specific behavioral assumptions. Such a view underlies the charge of
descriptive inaccuracy leveled so many times at public choice theorizing.29 It is tempting to overstate the force of this charge. Consider
again the society of altruists that I imagined in Part II. Such a society
is indeed incompatible with some interpreted public choice models,
such as those that flesh out the agents' utility functions (i.e., what
goods, and amounts, an individual's utility depends on) with a narrow
version of the self-interest postulate. Based on rational choice assumptions, we predicted that charity would be under-produced in that
society. We need not quarrel about whether that prediction is to be
termed a "public (or rational) choice" one. The substantive point is
that we can isolate a conceptual structure on which the prediction
rested, a structure abstracted from behavioral hypotheses. The concepts of "public good" and "free rider" belong to that structure, as
well as the usual formal requirements on rational action, such as transitivity of preferences. The fact that (many) interpretedpublic choice
models are false is no reason to jettison abstractpublic choice analy28. For a nuanced (and technical) defense of institutions that economize on virtue, see
Geoffrey Brennan & Alan Hamlin, Economizing on Virtue, 6 CONST. POL. ECON. 35 (1995).
29. For a useful survey of such charges, see LARS UDEHN, THE LIMITS OF PUBLIC CHOICE:
A SOCIOLOGICAL CRITIQUE OF THE ECONOMIC THEORY OF POLITICS 60-114 (1996).
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sis. To be sure, abstraction can yield successful explanations and predictions only in so far as we do not rest content with purely deductive
juggling. But even abstract models that depict a world that is considerably at variance with ours can help us understand our world and
regard it as less puzzling than it might otherwise appear to us. Thus,
conceptualizing a good as "public" allows us to understand why certain goods that people regard as worth their personal cost are underproduced. Again, being told that certain interactions yield multiple
equilibria may help us understand why the economic performances of
countries that adopted similar constitutional regimes are so dissimilar.30 Non-economists find such phenomena puzzling, and it is indeed
ironic that sometimes this leads them to concoct explanations in terms
of "cultural" and other factors that are not easily amenable to independent tests-the sort of ad hoc explanations that, as we saw in Part
V, public choice has resources to avoid. Those concerned with institutional reform and its limits have much to learn from public choice
models, even when they do not describe our world, and law schools
are natural places to pursue those aims.
30. See supra note 21 and accompanying text.